Citation Nr: 21069425 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-51 733 DATE: November 18, 2021 ORDER Entitlement to service connection for a respiratory disorder, to include reactive airway disease diagnosed as chronic obstructive pulmonary disease (COPD), is denied. FINDING OF FACT A respiratory disorder, diagnosed as COPD, is not shown to be causally or etiologically related to an in-service event, injury, or disease, including his presumed exposure to herbicide agents. CONCLUSION OF LAW The criteria for entitlement to service connection for COPD have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967, including service in the Republic of Vietnam. He is the recipient of the Combat Infantryman's Badge. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2013 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2021, the Veteran testified at a Board before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was remanded in May 2021 to obtain updated treatment records and a medical nexus opinion. After review of the development accomplished by the AOJ, the Board concludes there has been substantial compliance with the Board remand and no further action is necessary as to this appeal. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010) ("It is substantial compliance, not absolute compliance, that is required" under Stegall v. West) (citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999)). Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1131. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303(a). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, namely from February 28, 1961, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent (to include Agent Orange) during active service, certain diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. This list of diseases does not include COPD or any chronic respiratory disease other than respiratory cancers. Notwithstanding the presumptive provisions, service connection for a disability related to exposure to herbicides also may be established by showing that a disorder resulting in disability is, in fact, causally linked to the exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir.), citing 38 U.S.C. §§ 1113 and 1116, and 38 C.F.R. § 3.303. The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006). It is noted that competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran claims his respiratory disorder is the result of his active duty service, including exposure to Agent Orange while serving in Vietnam. In his December 2011 claim for service connection (VA Form 21-526, Veteran's Application for Compensation and/or Pension), the Veteran reported his COPD began approximately January 2005. Private treatment records show the initial post service diagnosis of a respiratory disorder was in March 2010 (a March 2011 report of Office Consultation by a private treatment provider notes the Veteran "has been experiencing shortness of symptoms of shortness of breath on exertion for last one year" and includes an impression of "mixed obstructive and restrictive lung disease"). Additional subsequent clinical records show diagnosis of and treatment for reactive airway disease diagnosed as obstructive and restrictive lung disease and COPD by his private physician. These records note the Veteran "smoked about 15 years but quit smoking in 1968." See, also, June 2021 VA examination report noting diagnosis of COPD. As such, Shedden element 1, evidence of a current disability, is established. Regarding Shedden element 2, evidence of in-service incurrence or aggravation of a disease or injury, the Veteran's service treatment records (STRs) show treatment for complaints of chest pain secondary to muscular strain and cough with impression of URI (upper respiratory infection). In a June 1967 separation examination report and report of medical history, the examiner noted that the Veteran had mild chronic rhinitis but indicated that his lungs and chest were normal. The Veteran's service personnel records show he served in the Republic of Vietnam from November 1965 to November 1966; thus, his exposure to Agent Orange is presumed. See 38 C.F.R. § 1116. Accordingly, for the purposes of establishing direct service connection, the requirements of Shedden element (2) are met. However, COPD (or any chronic respiratory disease other than respiratory cancers) is not presumptively linked to in-service Agent Orange Exposure. See 38 C.F.R. § 3.309(e). Where the evidence does not warrant presumptive service connection, an appellant is not precluded from establishing service connection for disability due to exposure to herbicides with proof of direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In support of his claim, the Veteran submitted a July 2013 statement from his private physician which notes the Veteran's 15-year history of smoking, which he quit in 1968, and exposure to agent orange (dioxin) while deployed in Vietnam. This statement includes the opinion that the Veteran's "shortness of breath which at times behaves like reactive airway disease may have been secondary to exposure to dioxin." This statement is phrased in speculative terms ("may") and provides no explanation of rationale; thus, it lacks probative value and not sufficient to establish a medical nexus for rating purposes. See Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus); 38 C.F.R. § 3.102 (reasonable doubt does not include resort to speculation or remote possibility). In addition, treatment records from the Veteran's private physician, dated from April 2018 to May 2021, include the assessment that the Veteran has "a known history of reactive airway disease from exposure to agent orange in the past" and he "developed reactive airway disease after exposure to agent orange during his deployment in Vietnam." This assessment is insufficient, standing alone, to warrant a grant of service connection as it is conclusory and without explanation of rationale. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) ("A mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to the doctor's opinion."). The only competent (medical) evidence in the record that addresses the matter of a nexus between the Veteran's respiratory disorder and his military service, including presumed exposure to Agent Orange, is the medical opinion provided in the June 2021 VA examination report. The examiner concluded that it was not at least as likely as not that the Veteran's respiratory disorder was incurred in or related to service, to include presumed Agent Orange exposure. The physician found, after interview of the Veteran and review of the claim and the relevant medical literature, that the etiology of the Veteran's COPD is more likely due to his extensive smoking history. The examiner explained that the "Veteran has an extensive smoking history (15 years) which is a well-established primary etiology of COPD in the medical literature." The examiner further noted that agent orange exposure is not an established primary etiology of COPD. This opinion is provided by a medical doctor with expertise in internal medicine and includes an explanation of rationale which is based on interview of the Veteran and a review of his claims file and relevant medical literature; thus, it is probative evidence in the matter. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Because there is no probative evidence to the contrary, it is persuasive. As there is no probative medical evidence linking any in-service exposure to herbicide agents to a chronic respiratory disorder, including COPD; service connection on the basis of presumed herbicide exposure is not warranted. Accordingly, as there is no probative medical evidence of a nexus between the Veteran's presumed herbicide exposure in service and his current respiratory disability, Shedden element 3 (medical evidence of a nexus between the claimed in-service disease or injury and the current disability) is not satisfied and service connection on a direct basis is not established. The Board has considered the Veteran's contentions that his COPD is linked to his period of active service. The Board acknowledges that as a layperson, the Veteran is competent to observe and report symptoms of COPD and express when these symptoms began (as noted above, on his December 2011 claim for service connection, he reported his COPD began in approximately January 2005). However, in this case, the Veteran is not competent to diagnose COPD or comment on the cause of his symptoms because it would involve complex medical inquiries into biological processes and physiological functioning. Such internal physical processes are not readily observable and are not within the competence of the Veteran in this case, who has not been shown by the evidence of record to have medical training or skills. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Thus, the Board finds the lay assertions in this regard are outweighed by the medical evidence of record finding against a nexus to service. As the preponderance of the evidence is against the Veteran's claim of service connection for a respiratory disability, including COPD, the benefit of the doubt rule does not apply and the appeal as to this matter must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K Hughes The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.